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According to Ripple, the SEC failed to disclose the expert’s identity and opinions during the discovery phase of the remedies litigation.
Ripple has filed a new motion in its case against the SEC, asking Magistrate Sarah Netburn to exclude the new expert materials the plaintiff submitted in support of its opening remedies brief and final judgment entry.
SEC Failed to Submit Fox Declaration During Discovery
The crypto payments company recounted how the SEC deposed its supplemental expert report on disgorgement during the discovery phase of the remedies litigation.
However, during this phase, the SEC did not tender a declaration from one of its expert witnesses, Andrea Fox, an assistant chief accountant of the agency’s enforcement division.
For context, Fox’s declaration includes an accounting analysis regarding the remedies aspect of the lawsuit, which the court mandated the SEC to reveal during discovery.
Nonetheless, the SEC waited until the filing of its opening remedies-related brief to submit the expert report. Notably, the late submission potentially limited Ripple’s ability to respond and counter the arguments within the discovery period.
An Expert or Summary Witness?
According to Ripple, the SEC stated that Fox was neither an expert nor a fact witness. Instead, the regulatory agency referred to Fox as a summary witness. Consequently, Ripple contends that summary witnesses, like Fox, are not entitled to offer new information.
Interestingly, Ripple argued that the SEC’s reference to Fox as a summary witness instead of an expert witness was only a ploy by the agency not to disclose her identity and opinions before the close of discovery.
Ripple contended that Fox qualifies as an expert witness because she did not merely summarize evidence but conducted an in-depth accounting analysis that exceeds the scope of the materials upon which they are founded.
“That makes her an expert witness, not a summary witness,” Ripple remarked.
Parties Propose New Schedule
During the conference before the motion, the SEC opposed Ripple’s request to exclude Fox’s report. As a result, the parties proposed that the court grant the SEC five business days to officially file an opposition.
The parties also agreed that Ripple be given three business days afterward to reply.
The latest filing comes before Ripple’s opposition to the SEC’s opening remedies brief. As reported earlier, Ripple proposed that the court should not impose a civil penalty of more than $10 million, in contrast to the SEC’s request of $876.3 million.
Additionally, Ripple contended that the SEC failed to show why the court should impose a sanction and disgorgement. It is noteworthy that pro-XRP lawyer James K. Filan shared both filings today.
#XRPCommunity #SECGov v. #Ripple #XRP @Ripple has filed a Motion to Strike new expert materials the SEC submitted in support of its Motion for Remedies and Entry of Final Judgment.https://t.co/k8M84DxDiz
— James K. Filan 🇺🇸🇮🇪 (@FilanLaw) April 22, 2024